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GARFO Head Explains What's Needed to Keep Lobster Fishery Alive

Declaration of Michael Petony submitted in CBD v Raimondo remedy brief

First published in Landings, November 2022

September 19, 2022

I am responsible for the development and implementation of management programs for the living marine resources of the northeast United States. I supervise the personnel in the Greater Atlantic Regional Fisheries Office (GARFO) Protected Resources Division who are charged with developing and administering the Atlantic Large Whale Take Reduction Plan (ALWTRP) pursuant to the Marine Mammal Protection Act (MMPA), as well as the consulting agency responsibilities associated with the Endangered Species Act (ESA).

Potential Biological Removal Potential Biological Removal level (PBR) is the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. Population estimates and the associated PBR for marine mammal stocks are published annually in marine mammal stock assessment reports, most recently in the 2021 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment. The current PBR for North Atlantic right whales is 0.7 mortalities or serious injuries (M/SI) per year. Based on the recent PBR of 0.7, the risk reduction needed for the U.S. commercial fisheries to reach PBR has increased from 60-80 percent in 2019 (when we began work on the Phase 1 rulemaking) to a risk reduction of approximately 89-94 percent. Since the Phase 1 rule only achieved an estimated 46 percent reduction of risk posed by coastwide ALWTRP fisheries, at least an additional 43 percent risk reduction is needed in order to reduce M/SI to a level below PBR.

The 89-94 percent range acknowledges existing uncertainty regarding apportionment of cryptic mortalities between the United States and Canada. For the Phase 1 rule and Final Environmental Impact Statement (“FEIS”), we assumed half of all incidents occurred in each country (50:50). NMFS intends to reevaluate apportionment in light of new information and studies that were not available at the time the last rule was developed. The range of current risk reduction targets reflects a range of potential U.S./Canada apportionments (50:50, 40:60, and 30:70).

NMFS has conducted a preliminary exploratory analysis of the scale and types of management measures that may be necessary to achieve PBR (89-94 percent risk reduction target) and can report on several findings. First, a complete closure of the Federal trap/pot and gillnet fisheries alone would not be sufficient to reach PBR. Moreover, without additional restrictions, if all ALWTRP Federal fisheries were closed, dually-permitted vessels would simply shift their gear into state waters. Decision support tool (DST) runs on these scenarios, which also include all Phase 1 measures, results in an approximately 85 percent risk reduction if all gear in federal waters was entirely removed from the ocean, and approximately 61 percent risk reduction if all gear in federal waters was removed from federal waters and redeployed in state waters.

Second, the Plaintiffs proposal would not achieve PBR. The proposal the Plaintiffs describe in the briefing is ambiguous. However, we modeled it to give Plaintiffs the benefit of the doubt to resolve all ambiguity by maximizing risk reduction in a manner that is consistent with their briefing, as well as discussions at Take Reduction Team (“TRT”) meetings, and a May 2022 written submission to NMFS (See attached). Plaintiffs’ proposal, as modeled by NMFS includes: (1) Continuing the measures included in the Phase 1 rule; (2) seasonal closure of Lobster Management Area 3 above 40.3 degrees from October through December; (3) a year-round closure of a large area south of Martha’s Vineyard and Nantucket, statistical area 537 (incorrectly labeled as area 529 in Plaintiffs’ brief); (4) seasonal closure of Lobster Management Area 1 from January through May; (5) requiring the use of one buoy line in Lobster Management Area 3 year-round; and (6) measures described in Plaintiffs’ written submission paragraphs 4, 5, 6, 7 (Plaintiffs also broadly proposed dynamic closures but we lack the information needed to model such closures) in a manner that reasonably resolves ambiguity to maximize risk reduction. DST runs on this proposal from Plaintiffs’ result in an approximately 82 percent risk reduction. If we simply modeled Plaintiffs’ proposal as they describe in their remedy brief without resolving ambiguity toward greater risk reduction or including measures listed in written submission, the result would have substantially less risk reduction and fall well short of reaching PBR.

As illustrated in the initial exploratory analysis, achieving PBR will require a broad suite of management measures implemented in both the federal and state waters that are informed by the most recent scientific information. Any suite of management measures capable of achieving PBR will likely include the following measures: (1) continuation of existing Phase 1 measures; (2) targeted large scale closures where gear is entirely removed from the water and brought to shore for extended periods as opposed to being redeployed elsewhere; (3) broad vertical line reductions(achieved through trap allocation reductions, use of a single vertical buoy on lobster trawls, increased use of on-demand technology, or other means); and (4) expanded use of weak rope or weak links.

The scope of the measures required to reach PBR will have severe economic and social consequences to the affected fisheries and surrounding communities. Large scale closures—even if only for a portion of a year—are likely to impact individual fishing businesses by seasonally reducing revenue. While different fishermen will be affected differently depending on the nature of such closures, if a fishing business relies upon fishing a particular area at a certain time of year and such an area is unavailable, such a loss could constitute the end of a viable fishing operation—and currently for many fishing operations, profit margins are not large. The more widespread such closures are, the more fishing businesses that will be impacted, and the scale of risk reductions needed to reach PBR suggest that this will affect a large number of Northeast fishermen. In addition, the other types of measures likely necessary to accomplish PBR would require the purchase of additional gear (i.e., weak rope or weak links), or the implementation of new means of fishing that, if not developed methodically and carefully, could result in significant gear conflicts that have financial and safety impacts on the fishermen regulated under these measures as well as adjacent mobile gear fishermen.

It is important to note that risk reduction becomes exponentially more difficult, and more far reaching, as risk reduction approaches 90 percent because it becomes necessary to restrict fishing in areas that have relatively low fishing effort. This provides diminishing returns for risk reduction. For example, it is far easier to move to 70 percent risk reduction from 60 percent, than getting to 80 percent from 70 percent. To get to 90 percent risk reduction from 80 percent will take extraordinarily broad measures, far beyond what Plaintiffs propose.

Timeline for PBR The Phase 1 rulemaking took approximately three years to complete (October 2018-September 2021). NMFS believes that two years, from November 2022, are necessary to finalize a rule that would allow the U.S. fisheries to reduce mortality and serious injury below PBR within six months of the rule’s implementation. NMFS has already begun work on this approach and published a notice of intent to prepare an Environmental Impact Statement (EIS) on modifications to the Atlantic Large Whale Take Reduction Plan on September 8, 2022. This timeline would allow for TRT involvement that NMFS believes is critical to develop an effective rule. NMFS has already scheduled TRT meetings for September19, 22, and 30 with a follow up likely in November with the intent of having the TRT discuss measures necessary to reach PBR.NMFS intends to expedite the TRT process such that TRT deliberations are complete by the end of December 2022. Next, NMFS will utilize the alternatives developed during TRT deliberations to begin drafting a DEIS and proposed rule. Given our experience with NEPA compliance for similarly complex and controversial actions, we anticipate finalizing the DEIS and proposed rule by November 2023 and the FEIS and final rule by the beginning of December2024.

The proposed timeline also takes into account that NMFS may, after reviewing new information, seek peer review for several critical analytical approaches that underpin the new rule including: (1) the updated and refined DST; (2) reconsideration of apportionment of mortalities and serious injuries between U.S. and Canada; and (3) reconsideration of apportionment of mortalities and serious injuries between vessel strikes and fisheries. Additionally, this timeline will allow NMFS to utilize a new and updated North Atlantic right whale population model. This model updates the work of Linden (2021) and is currently undergoing peer review. The model provides valuable improvements over the prior Linden model by including important parameters that affect whale reproductive rates such as prey availability, individual reproductive cycles, and responses to sublethal entanglement. NMFS expects this model to be available by early2023.Further, the proposed timeline would allow for the necessary coordination and consultation with the Atlantic States Marine Fisheries Commission and the Mid Atlantic and New England Fishery Management Councils to ensure effective implementation.

Negligible Impact Determination We calculated the North Atlantic right whale Negligible Impact Determination (NID) value following the NOAA Fisheries procedural directive ( As described in the directive, this value is the product of the minimum population size, half the maximum productivity rate and a negligible impact factor of 0.013 (364 * .02 * 0.013 = 0.095). This means that NMFS can make a NID finding only if the fishery causes the incidental mortality or serious injury of no more than 0.095 North Atlantic right whales a year or approximately one mortality or serious injury every eleven years.

Timeline for NID Other than the full closure of state and federal trap/pot and gillnet fisheries, large-scale on-demand implementation is the only certain pathway to achieving NID. NMFS and our partners continue to work on technological and operational solutions that would support large-scale on-demand fishing. In the Conservation Framework, NMFS committed to reducing North Atlantic right whale M/SI caused by federal fisheries to 0.136 per year in 2030. That commitment was based on NMFS’ understanding of when large-scale on-demand fishing would be feasible. NMFS will continue to work towards achieving large-scale on-demand fishing by 2030. Achieving NID will not be possible until that time without massive disruption in the form of wide closures of fixed gear fisheries.


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